W.P.(C).Nos.13933/19 & con.cases; and connected WP(C) Nos.1778/2020 and 16182/2020

W.P.(C).Nos.13933/19 & con.cases 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 WP(C) NO. 13933 OF 2019** ## **PETITIONER:** SAJU.P.A AGED 48 YEARS UPPER DIVISION CLERK, STOCK VERIFICATION SUB DIVISION, KERALA WATER AUTHORITY,MALAPARAMBA, MOZHIKODE-673 009 BY ADVS. KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.RIYA RAYMOL IYPE SMT.MAITREYI SACHIDANANDA HEGDE ## **RESPONDENTS:** 1 THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALABAVAN, THIRUVANANTHAPURAM-695 033 2 MANAGING DIRECTOR, KERALA WATER AUTHORITY,JALABAVAN, THIRUVANANTHAPURAM-695 033 3 NASEEMA.A.K., HEAD CLERK, KERALA WATER AUTHORITY,P.H.DIVISION, MOOVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 691 4 SANTHOSH KUMAR.K., HEAD CLERK, W.S.P.SUB DIVISION, VADAKARA W.P.(C).Nos.13933/19 & con.cases 2 - 5 SHAKKELA.S., HEAD CLERK, KERALA WATER AUTHORITY,P.H.DIVISION (NORTH), THIRUVANANTHAPURAM - 6 KUMARI JAYASREE.S.I., HEAD CLERK, FUNDS SECTION, HEAD OFFICE, K.W.A., THIRUVANANTHAPURAM - 7 SUDHAKUMARI.K.S., HEAD CLERK, W.S.P.SUB DIVISION, VAIKOM - 8 UTAMAN.P., HEAD CLERK, INTERNAL AUDIT, KERALA WATER AUTHORITY,THIRUVANANTHAPURAM - 9 GEORGE PHILIP, HEAD CLERK,W.W.CENTRAL SUB DIVISION, KERALA WATER AUTHORITY,THIRUVANANTHAPURAM - 10 SAKKER MOHAMMED, HEAD CLERK, P.H.SUB DIVISION, SULTHAN BATTERY - 11 SHYLAJA KUMARI.G.,M HEAD CLERK, W.W.REVENUE SECTION, PATTOOR, THIRUVANANTHAPURAM - 12 DUGLUS.A.L. HEAD CLERK, (FRIENDS-THIRUVANANTHPAURAM) , W.W.SOUTH SUB DIVISION, KURIATHY, THIRUVANANTHAPURAM ADDL-R13 INDULEKHA S., - 13 HEAD CLERK, KERALA WATER AUTHORITY, HEAD OFFICE, PALAYAM-AIRPORT ROAD, PATTOOR, TRIVANDRUM-695 024. ADDL. R14 -SREEKALA K., HEAD CLERK, KERALA WATER AUTHORITY, OFFICE OF THE 14 EXECUTIVE ENGINEER, PATHANAMTHITTA, THIRUVALLA -689 101. W.P.(C).Nos.13933/19 & con.cases 3 ADDL. R15- SILBY SUNNY, 15 HEAD CLERK, KERALA WATER AUTHORITY, UNDER P H DIVISION, THODUPUZHA -685 585. ADDL.R16 -RAJU A.S., HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB 16 DIVISION, PONKUNNAM, EDATHUA, KUTTANAD TALUK - 689 573. ADD R17 -PRAMODAN K. HEAD CLERK, KERALA WATER AUTHORITY, INDIRA NAGAR, 17 MATTANNUR, KANNUR- 670 702. ADDL.R18-RAGESH B., HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB 18 DIVISION, PARAPPANANGADI, CHEMMAD, MALAPPURAM ROAD, KARIPARAMBU- 676306. ADDL R19-ELDO THOMAS, HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB 19 DIVISION, PAINAV MAIN ROAD, IDUKKI PAINAVU, IDUKKI - 685603. ADDL-R20-JOISHY K.P., 20 HEAD CLERK, KERALA WATER AUTHORITY, H.W. SUB DIVISION, PERUVALATHUPARAMBA, IRIKKUR- 670593. ADDL.R21-ABHILASH S.J., 21 HEAD CLERK, KERALA WATER AUTHORITY, W.S. SUB DIVISION, VARKALA - 695141. ADDL.R22-POULOSE P.T., 22 HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB DIVISION, NH 66, EDAPPALLYKOTTA, CHAVARA- 691583. ADDL.R.23-MANIKANTAN P.S., HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB 23 DIVISION, TVM ROAD, PULAMON, KOTTARAKKARA, PULAMON, KOLLAM -691531. W.P.(C).Nos.13933/19 & con.cases 4 ADDL.R24-SAJEESH V.C., 24 HEAD CLERK, KERALA WATER AUTHORITY, W.W. SUB DIVISION, CHEMBUKKAV, THRISSUR- 680020. ADDL.R25-ANIL KUMAR S., 25 HEAD CLERK, KERALA WATER AUTHORITY, W.S. SUB DIVISION (ESTT), ATTINGAL - 695 101. ADDL.R26-SUBHODH KUMAR V.G., 26 HEAD CLERK, KERALA WATER AUTHORITY, W.S. SUB DIVISION (REV), ATTINGAL -695 101.. ADDL.R27-SUSMITHA A.S., HEAD CLERK, KERALA WATER AUTHORITY, W.S. SUB 27 DIVISION, VISWABHARATHY ROAD, ALUMMOODU, NEYYATTINKARA -695121. ADDL.R28-BINDHU P.K., 28 HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB DIVISION, KOYILANDI- 673305. ADDL.R29 -SINDHU MADHAVAN, 29 HEAD CLERK, KERALA WATER AUTHORITY, SRI NETTOR, NEAR NETTOOR JUNCTION, MARADU, ERNAKULAM- 682040 ADDL.R30-KRISHNA PRADEEPA K., 30 HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB DIVISION, PALAKKAD - 678001. ADDL.R31-NAZEEM S., HEAD CLERK, KERALA WATER AUTHORITY, P.H. DIVISION 31 (NORTH), ALTHARA JUNCTION, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM- 695033. ADDL.R32-VENUGOPALAN M.P., 32 HEAD CLERK, KERALA WATER AUTHORITY, W.S. DIVISION, KUTHUPARAMBA ROAD, THANA, KANNUR - 670012. ADDL.R33-BIJU K. VARGHESE, HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB 33 DIVISION, ERNAKULAM, PIRAVOM- 686664. W.P.(C).Nos.13933/19 & con.cases 5 ADDL.R34-SHAMILA K.K., 34 HEAD CLERK,KERALA WATER AUTHORITY, WSP SUB DIVISION, COURT JUNCTION, HARIPPAD -690514. ADDL.R35-THARABAI P., 35 HEAD CLERK,KERALA WATER AUTHORITY,P.H. SUB DIVISION, MALA, KARIYAD, NEDUMBASSERY- 683589. ADDL.R36-SREEJA S., HEAD CLERK, KERALA WATER AUTHORITY, PROJECT 36 DIVISION, NANDAVANAM, JALABHAVAN, VELAYAMBALAM, THIRUVANANTHAPURAM - 695033. ADDL.R37-MOHANAN M., HEAD CLERK, KERALA WATER AUTHORITY, ACCOUNTS 37 SECTION, HEAD OFFICE, PALAYAM - AIRPORT RD, PATTOOR, THIRUVANANTHAPURAM-695024. ADDL.R38-VIDYA RAJAGOPAL, 38 HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB DIVISION, SHORANUR- 679121. ADDL.R39-BIJU T.V., HEAD CLERK, KERALA WATER AUTHORITY, W.S. SUB 39 DIVISION (ESTT), INDIRA NAGAR, MATTANNUR, KANNUR - 670702. ADDL.R40-SEEMA P. PILLAI, 40 HEAD CLERK, KERALA WATER AUTHORITY, OFFICE OF THE EXECUTIVE ENGINEER W.S. SECTION, CHIRANICAL, ADOOR. ADDL.R41-REMADEVI P., 41 HEAD CLERK, KERALA WATER AUTHORITY, P.H. SUB DIVISION, SOUTH NADA, EAST NADA, GURUVAYUR - 680101. ADDL.R42-ANOOP B. NAIR, HEAD CLERK, KERALA WATER AUTHORITY, OFFICE OF THE 42 CHIEF ENGINEER (S R), ALTHARA JUNCTION, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM-695033 W.P.(C).Nos.13933/19 & con.cases 6 ADDL.R43-JISHA V.G., HEAD CLERK, KERALA WATER AUTHORITY, PROJECT 43 DIVISION, UP HILL, MALAPPURAM- 676505. ADDL.R44 DEEPA V.S., HEAD CLERK, KERALA WATER AUTHORITY, HEAD OFFICE, 44 JALA BHAVAN, NANDAVANAM, VELAYAMBALAM, THIRUVANANTHAPURAM-695033. ADDL.R45 -PRAKASAN PARAMEL, 45 HEAD CLERK, KERALA WATER AUTHORITY, HW SUB DIVISION, FRIENDS NAGAR, KALPETTA- 673122. ADDL. R46- ABDUL GAFOOR N.V., HEAD CLERK, KERALA WATER AUTHORITY, W S SUB 46 DIVISION, WATER AUTHORITY OFFICE ROAD, THALIPARAMBA - 670141. ADDL.R47-GOPAKUMAR S., HEAD CLERK, KERALA WATER AUTHORITY, S REVENUE 47 SECTION, SUB DIVISION, PONGAMOODU WEST SUB DIVISION, PONGUMOODU, THIRUVANANTHAPURAM - 695011. ADDL.R48- DEEPTHI V.S., HEAD CLERK,KERALA WATER AUTHORITY,SEWERAGE NORTH SUB 48 DIVISION, PALAYAM - AIRPORT RD, PATTOOR, THIRUVANANTHAPURAM-695024. ADDL.R49-HAMSATH S., 49 HEAD CLERK, KERALA WATER AUTHORITY, HEAD OFFICE, JALA BHAVAN, NANDAVANAM, VELAYAMBALAM, THIRUVANANTHAPURAM- 695033. ADDL.R50-SHINE P.C., HEAD CLERK, KERALA WATER AUTHORITY, W S SUB 50 DIVISION, FORT RD, MATTUPURAM, NORTH PARAVUR683513. W.P.(C).Nos.13933/19 & con.cases 7 ADDL.R51-SAJITH E.P., 51 HEAD CLERK,KERALA WATER AUTHORITY,GPF SECTION,HEAD OFFICE, JALA BHAVAN,TRIVANDRUM-695 033. ADDL.R52-GIRILAL J.V., HEAD CLERK,KERALA WATER AUTHORITY, OFFICE OF THE CHIEF ENGINEER (S R), VATTIYOORKKAV ARAPPURA ROAD, 52 PTP NAGAR, ARAPPURAMUKKU, THIRUVANANTHAPURAM-695031IMPLEADED AS ADDL.R13 TO R52 AS PER ORDER DTD 25.1.21 IN IA .3/20 IN WPC 13833/19 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2022, ALONG WITH WP(C).1778/2020, 16182/2020, THE COURT ON 09.11.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.13933/19 & con.cases 8 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 WP(C) NO. 1778 OF 2020** ## **PETITIONERS:** 1 SAFFEEQ M.P AGED 44 YEARS S/O.MUHAMMED M.P., PRESENTLY WORKING AS U D CLERK, QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY, MALAPARAMBA P.O., KOZHIKKODE, PIN-673009, RESIDING AT PUTHIYARAKKAL, M.I.E., KUNNAMANGALAM P.O., KOZHIKKODE-673571. 2 SHANAVAS J.M., AGED 43 YEARS S/O.MOIDEEN KOYA C.K., PRESENTLY WORKING AS U D CLERK, HEAD WORKS SUB DIVISION, KERALA WATER AUTHORITY, MALAPARAMBA P.O., KOZHIKODE-673009, RESIDING AT MADHUVANAM, VATTOLI BAZAR P.O., BALUSSERY (VIA), KOZHIKODE-673612. 3 SURESH K., AGED 47 YEARS S/O.CHERUNNI NAIR, PRESENTLY WORKING AS U D CLERK, R.M.S. SUB DIVISION, KERALA WATER AUTHORITY, MALAPARAMBA P.O., KOZHIKODE-673009, RESIDING AT MADEKANDY HOUSE, NANMINDA P.O., KOZHIKODE-673613. 4 BIJULAL K., AGED 46 YEARS S/O.KUNHIRAMAN NAIR P., PRESENTLY WORKING AS U D CLERK, P.H. SUB DIVISION, KERALA WATER AUTHORITY, KOYILANDY, KOZHIKODE-673305, RESIDING AT LAKSHMI NIVAS, DEVA THEJAS, NEAR POIKAVU HSS SCHOOL, EDAKKULAM, KOYILANDY P.O., KOZHIKODE-673306. W.P.(C).Nos.13933/19 & con.cases 9 BY ADVS. SRI.R.RENJITH SRI.M.T.SURESHKUMAR ## **RESPONDENTS:** 1 KERALA WATER AUTHORITY JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN695033, REPRESENTED BY ITS MANAGING DIRECTOR. 2 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN-695033. 3 THE CHIEF ENGINEER, H.R.D. AND GENERAL, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN695033. 4 THE SENIOR ADMINISTRATIVE OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN-695033. 5 SAJU P.A., HEAD CLERK, KERALA WATER AUTHORITY, DISTRIBUTION SUB DIVISION-II, SAROVARAM, KOZHIKODE, PIN-673020. BY ADVS. SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE KUM.A.ARUNA GEORGIE JOHNY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 2.09.2022, ALONG WITH WP(C).13933/2019 AND CONNECTED CASES, THE COURT ON 09.11.2022 DELIVERED THE FOLLOWING:- W.P.(C).Nos.13933/19 & con.cases 10 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 WP(C) NO. 16182 OF 2020** ## **PETITIONERS:** DIVYA G.S. AGED 37 YEARS W/O. SAJU.R., PRESENTLY WORKING AS U D CLERK, PH CIRCLE, KERALA WATER AUTHORITY, KOLLAM,PIN-691 001, RESIDING AT SAJI MANDIRAM, VISMAYA NAGAR 54, MANGAD P.O., KOLLAM,PIN-691015 BY ADVS. R.RENJITH SRI.M.T.SURESHKUMAR SMT.MANJUSHA K ## **RESPONDENTS:** 1 KERALA WATER AUTHORITY JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM,PIN695 033, REPRESENTED BY ITS MANAGING DIRECTOR 2 THE MANAGING DIRECTOR, H.R.D. AND GENERAL, KERALA WATER AUTHORITY, JALA ABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM,PIN-695 033 3 THE CHEIF ENGINEER HRD &GENERAL,KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM,THIRUVANANTHAPURAM. 4 THE SENIOR ADMINISTRATIVE OFFICER, KERALA WATER AUTHORITY, JALA ABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM,PIN-695 033. W.P.(C).Nos.13933/19 & con.cases 11 5 ADDL.R5. SAJU P.A., UPPER DIVISION CLERK, STOCK VERIFICATION SUB DIVISION, KERALA WATER AUTHORITY, MALAPARAMBA, KOZHIKODE - 673 009. RESIDING AT SRUTHILAYA, KOOVALATH VAYALIL HOUSE, BALUSSERRY P.O., KOZHIKODE. (ADDITIONAL R5. IS IMPLEADED AS PER ORDER DATED 25.01.2021 IN I.A.NO.3/2020 IN WP(C)16182/2020.) BY ADVS. SMT.MARY BENJEMIN SRI.KALEESWARAM RAJ SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY KUM.A.ARUNA GEORGIE JOHNY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2022, ALONG WITH WP(C).13933/2019 AND CONNECTED CASES, THE COURT ON 09.11.2022 DELIVERED THE FOLLOWING: W.P.(C).Nos.13933/19 & con.cases 12 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = = = = = = = = W.P.(C) Nos.13933 of 2019, 1778 & & 16182 of 2020** **= = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of November, 2022 JUDGMENT** 1. Heard the learned counsel for the petitioners and the learned standing counsel appearing for the Kerala Water Authority. 2. W.P.(C).No.13933 of 2019 is filed by an employee presently working as Head Clerk under the Kerala Water Authority, challenging Ext.P6 order to the extent it retrospectively reverted the petitioner from the post of U.D.Clerk to L.D.Clerk with effect from 01.11.2008 and as also challenging Ext.P7 order to the extent it promoted respondents 3 to 10 ahead of the petitioner to the post of Head Clerk. The contention of the petitioner therein is that the petitioner, who belongs to a Scheduled Caste community had entered service as LD Clerk on 28.10.2002. He joined duty on 06.11.2002 and his probation was declared as successfully completed by order dated 27.12.2004. It is contended that since he belonged to Scheduled Caste community, he was entitled to promotion as UD Clerk on arising of vacancy regardless of the non acquisition of the obligatory departmental test qualification, temporarily, under Rule 13A(1)(a) of W.P.(C).Nos.13933/19 & con.cases 13 Part II of KS&SSR. It is submitted that since the immediate junior of the petitioner had been promoted as UD clerk on 23.03.2007, there was a vacancy available to which the petitioner ought to have been promoted. However, it was only after acquisition of the departmental test qualification in the year 2011 that the petitioner was promoted on 26.08.2011 by Ext.P3. It is submitted that thereafter, the petitioner approached this Court and Ext.P8 Judgment was rendered directing the consideration of the petitioner’s claim for earlier promotion in terms of Rule 13A(1)(a). Thereafter, Ext.P6 order was issued on 20.01.2019 promoting the petitioner as Upper Division Clerk with effect from 23.03.2007. However, since the vacancy arose on 01.11.2005, he was reverted as LD Clerk with effect from 01.11.2008, since, he had not acquired the qualification within the specified period. Thereafter, the petitioner was denied promotion to the post of Head Clerk taking note of his reassigned seniority by Ext.P7, which is also under challenge. 3. A counter affidavit is filed by the Kerala Water Authority in the above writ petition. It is contented in the said counter affidavit at paragraphs 4 and 6 as follows; W.P.(C).Nos.13933/19 & con.cases 14 “4. It 1s respectfully submitted that Smt.Naseema A-K. was the immediate junior to the petitioner. She was advised by the Public Service Commission as Lower Division Clerk on 28.10.2002 and joined duty on 06.11.2002. Probation declared on 05.11.2004. She acquired prescribed departmental test qualification on December 2003 and was promoted as UD Clerk on 23.07.2007 as per Order No. KWA/JB/E9-9000/1999/Vol-II_ dated 23.03.2007. The petitioner was advised by KPSC on 01.04.2002 and joined duty on 06.11.2002. His probation was declared on 15.11.2004. He was promoted as UD Clerk on 26.11.2011 as per order No. KWA/JB/E9-9000/99.VolL.I1 dated 26.8.2011. Thus the order No.KWA/JB/E9/17158/2018 dated 26.1.2019 is based on the existing Rules and orders and not illegal. 6.Order No.KWA/JB/E9/17158/2018 dated, 20.01.2019 is based on the existing Rule 13A(1)(a) of Part-II KS&SSR, 1958 and clarification to Rule 13A(1)(a) of the KS&SSR, 1958 Circular No.8130/A.R.C.3/ARD dated, 24.02.2012. As per the said order the petitioner was promoted as UD Clerk with effect from 01.11.2005 as his immediate senior 3 respondent, by giving departmental test exemption. But he acquired departmental test qualification only on July-2009. Hence he is reverted with effect from 30.11.2008.” 4. W.P.(C).No.1778 of 2020 is filed by persons who entered service as LD Clerk in the Water Authority on 17.02.2006, 04.03.2005, 07.03.2005 and 10.03.2005, challenging Ext.P5 order dated 18.11.2019, by which the petitioner in W.P.(C).No.13933 of 2019 was provisionally promoted as Head Clerk in pursuance to the interim order dated 21.05.2019 in W.P.(C).No.13933 of 2019 and a contempt W.P.(C).Nos.13933/19 & con.cases 15 of court case filed therein, while W.P.(C).No.16182 of 2020 is filed by a Lower Division Clerk, who entered service on 14.07.2009 and was promoted as UD Clerk with effect from 09.10.2015 seeking a direction to consider and pass orders on Ext.P6 appeal filed by the petitioner against Ext.P5 order of reassignment of promotion of Upper Division Clerks pursuant to judgment in W.P.(C).No.24198 of 2009 and connected cases. It is contended that the retrospective dates assigned to the additional 5[th] respondent in the writ petition, that is, the petitioner in W.P.(C).No.13933 of 2019 without reference to the actual date of acquisition of qualification is illegal, erroneous and therefore liable to the reviewed. A detailed counter affidavit is placed on record in the said writ petition as well. 5. The learned counsel for the petitioner in W.P.(C).No.13933 of 2019 would contend that the provisions of Rule 13A(1)(a) of Part II of KS&SSR is a beneficial provision, provided for protecting the rights of Scheduled Caste and Scheduled Tribe candidates and enjoys the protection under Article 15(3) of the Constitution of India. It is contended that such beneficial provisions are to be construed in a manner which would lead to grant of the intended benefits to persons like the petitioner and should not be so construed as to deny W.P.(C).Nos.13933/19 & con.cases 16 them such rights. It is contended that the petitioner was entitled for temporary promotion as UD Clerk in the vacancies which where in existence as on dates, immediately after his probation was declared and had the petitioner been so promoted, he would have acquired the obligatory departmental test qualifications within 3 years period prescribed. It is submitted that the said promotion was illegally denied to the petitioner and was granted only long thereafter, even after the acquisition of the departmental test qualification by the petitioner and the resultant promotion in the year 2011. It is submitted that while granting a benefit to the petitioner under the applicable rules, the respondent cannot retrospectively take away what has been granted by assigning a prior date and relying on a legal fiction based on the said date. It is submitted that nobody has a case that the petitioner had not acquired the qualification. It is submitted that acquisition of the qualification in 2009 should, therefore, be taken into account and the retrospective reversion with effect from an anterior date is completely illegal and unsustainable. 6. The learned counsel for the petitioner relies on the decisions in **State of Madhya Pradesh v. Narmada Bachao Andolan and** W.P.(C).Nos.13933/19 & con.cases 17 **others** [(2011) 7 SCC 639], **Mohd.Ayub v. State of Uttar Pradesh through Principal Secretary and others** [(2009) 17 SCC 70], **Superintendent and Remembrancer of Legal Affairs to Government of West Bengal v. Abani Maity** [(1979) 4 SCC 85], **Balram Kumawat v. Union of India and others** [(2003) 7 SCC 628], **Rabindranath Bose and others v. Union of India and others** [MANU/SC/0506/1969], **Shiba Shankar Mohapatra v. State of Orissa** [(2010) 12 SCC 471], **Nazarudeen A and others v. The State of Kerala and others** [MANU/KE/1889/2010] and **S.Aji and others v.Nazarudeen A and others** [MANU/KE/0192/2015]. 7. The learned counsel for the petitioners in W.P.(C).No.1778 of 2022 and 16182 of 2022 would, on the other hand, contend that they were persons recruited direct as LD Clerks and who had acquired all qualifications including the obligatory departmental test qualifications well within time. It is contended that they were granted promotions to the higher posts taking note of their acquisition of the qualification as well. Much later, the petitioner in W.P.(C).No.13933 of 2019 approached this Court and sought a direction for consideration of his claim for earlier promotion on the basis of Rule 13A(1)(a) of Part II KS&SSR,. Without considering the W.P.(C).Nos.13933/19 & con.cases 18 objections of the respondents, the benefit was granted to him. He was assigned the seniority taking note of the date of occurrence of vacancy which was admittedly in 2005. Therefore, it is contented that once the benefit of the Rule is enjoyed by the incumbent, he cannot turn around and say that the resultant consequence of not acquiring the qualification within the prescribed time limit does not have to be complied with by him. It is submitted that since the petitioner in W.P.(C).No.13933 of 2019 sought the benefit of Rule 13A(1)(a) and the earlier promotion provided therein, he is also legally liable to suffer the consequences of not acquiring the qualification within the time prescribed by the rule from the date of effect which he had consciously and vehemently sought for himself. The learned counsel relies on decisions reported in **Varghese and others v. State of Kerala and others** [1981 KHC 148], **James Thomas and others v. The Chief Justice, High Court of Kerala and others** [1977 KHC 193], **Ansad S v. State of Kerala and others** [2016(2) KHC 524], **Appukuttan Nair v. State of Kerala** [1990 KHC 471] as also of a Division Bench of this Court in **Uthaman D v. State of Kerala** [OP(KAT No.248/2018 dated 28.2.2020] in support of the contentions. W.P.(C).Nos.13933/19 & con.cases 19 8. The learned counsel appearing for the Water Authority would also contend that since admittedly the petitioner in W.P.(C).No.13933 of 2019 had acquired the qualification only in 2009, he had been granted his due promotion and assigned seniority from 2011 onwards. He had sought the benefit of earlier temporary promotions in terms of the rules claiming the temporary exemption from qualification as provided therein. On his request, the said benefit was granted to the petitioner. Therefore, the temporary promotion due to him was predated from the date of availability of vacancy and considering the date on which his juniors were promoted. Once the said benefit is granted, it is contented that the result of the succeeding part of the Rule also would have to be suffered by the petitioner and that his reversion after 3 years from the date of his notional promotion is therefore perfectly justified. 9. I have considered the contentions advanced in detail. It is the admitted case that the petitioner in W.P.(C).No.13933 of 2019 was senior in service as LD Clerk to the petitioners in other two writ petitions. However, it is also not disputed that he acquired the obligatory test qualification in the year 2009. Going by the rules, he is entitled to temporary promotion without acquisition of test W.P.(C).Nos.13933/19 & con.cases 20 qualification as on the date when his juniors were promoted. He sought such temporary promotion and was granted the same. The date assigned for his temporary promotion as UD Clerk was 01.11.2005. If that be so, going for the later portion of the sub rule, he ought to have acquired the test qualification within 3 years from the date of such promotion, failing which he was liable to be reverted and could not seek any further promotion on the basis of the said rule. Rule 13A(1)(a) reads as follows:- **“13A(1) (a)** Where a pass in a special or departmental test is prescribed by the Special Rules of a service for any category, grade or post therein or in any class thereof, a member of a service belonging to any of the Scheduled Castes or Scheduled Tribes who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may be appointed thereto temporarily.” ## 10.This Court in **Uthaman D v. State of Kerala** [OP(KAT No.248/2018 dated 28.2.2020] has specifically considered the issue and has held in paragraphs 7 and 8 as follows: - “7. We see that the applicant was validly promoted on the basis of Rule 13A(1)(a). He admittedly did not pass the departmental test within the three year period. Though Rule 13AA is not applicable to the petitioner, Rule 13AB applied. Rule 13AA enabled the Government to exempt, by order, any member or members belonging to SC/ST, already in service, from passing the mandatory test under Rule 13 or 13A. The Rule having come into the book on 13.01.1972 is applicable only to persons who W.P.(C).Nos.13933/19 & con.cases 21 were in service as on that date, since the body of the rule used the words 'already in service'. Later Rule 13AB was brought in which provided that the orders issued under Rule 13A will inure to the benefit of persons appointed after 13.01.1972. However both these Rules can be only reckoned as enabling the Government to grant exemption by order and does not by itself grant an exemption. There were also orders issued under Rule 13AA read with 13AB extending the period of exemption as seen from Annexure A14. We specifically see that at first the exemption order was issued exempting SC and ST from passing departmental test for a period of two years as per order read as (1) dated 13.01.1972 in Annexure A14. This is also in pursuance to the amendment made on the very same date introducing Rule 13AA in the KS & SSR. We see from Annexure A14 that the benefit was extended in each year by relevant orders. But Annexure A14 itself speaks only of such exemption being applicable to employees belonging to SC/ST who entered service on or before 31.12.1985. Hence, under Rules 13AA & 13AB, the Government thought it fit to grant exemption to employees appointed upto 31.12.1985. 8. However the petitioner was entitled to be promoted to the post of UDC/Special Village Officer in 2006, when he was so appointed, by virtue of Rule 13A. He was also liable to be reverted if he had not acquired the test qualification within three years, which obviously he did not. But the Government continued him in the higher post till 2017, when the order of reversion was issued giving the reversion, retrospective effect from 2009. By the time the reversion order was issued he had also qualified the mandatory test. The continuance was on the Government not reverting the petitioner, which they were entitled to do. In such circumstance there cannot be any refund made from the petitioner but his seniority in the W.P.(C).Nos.13933/19 & con.cases 22 higher post has to be reassigned from January 2016. On the above reasoning, it is directed that the petitioner shall be immediately restored to the post from which he stood reverted. He shall be deemed to have been continuing in the post of UDC from 2016. It is made clear that the benefits he obtained in the higher post while he was continuing, up to the date of reversion i.e., 25.02.2017 shall not be disturbed at all. In the instant case also, the petitioner in W.P.(C).No.13933 of 2019 was appointed as LD Clerk on 6.11.2002. His probation was declared w.e.f. 15.11.2004 and he acquired the departmental test qualifications in July 2009. He was promoted as UD clerk on 26.8.2011. Notional promotion was granted as UDC on his request on 23.3.2007 and seniority was assigned from 1.11.2005. If the assigned date of seniority for promotion as UD clerk is to be taken into account, he ought to have acquired the test qualification on 1.11.2008. However, since he had acquired the test qualification in 2009, he would have been eligible for regular promotion in subsequent vacancies taking note of the date of acquisition of the qualification and seniority. If the date of promotion of the petitioner was reckoned as 23.3.2007 also, that is the date of actual promotion of the immediate junior, the petitioner would have been eligible for continuance since he acquired the qualification in 2009. It is only by Exhibit P6 order impugned in W.P.(C).No.13933 of 2019 that the W.P.(C).Nos.13933/19 & con.cases 23 petitioner was granted a notional date of promotion as 1.11.2005 and he was notionally reverted on 1.11.2008. Therefore, it is clear that it is only on account of the notional date of promotion as UDC granted from 1.11.2005 that the reversion became necessary. As at present, the petitioners in all these cases stand promoted to the post of Head Clerk. Therefore, there would be no requirement for the reversion of the petitioner in W.P.(C).No.13933 of 2019 as provided in the impugned order. However, what is required would be a revision of seniority taking note of the principles enunciated by the Division Bench in **Uthaman's** case supra. 11.In the above view of the matter, I am of the opinion that the entire issue with regard to fixation of seniority requires a consideration at the hands of the respondents in accordance with the dates of acquisition of qualification and the date of arising of vacancies. All the writ petitions are, therefore, disposed of with the following directions. The respondents shall take up Ext.P6 appeal produced in W.P.(C).No.1778 of 2020, consider the same with notice to all concerned and pass appropriate orders considering the claims for promotions of the petitioners with specific reference to the date of arising of vacancies and the date of acquisition of qualifications. W.P.(C).Nos.13933/19 & con.cases 24 Appropriate orders revising the seniority of UD clerks shall be issued and the seniority of the incumbents in the post of Head Clerks will be regulated accordingly. Appropriate steps shall be taken within a period of three months from the date of receipt of a copy of this judgment. **==> picture [24 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj. W.P.(C).Nos.13933/19 & con.cases 25 ## **APPENDIX OF WP(C) 1778/2020** PETITIONER EXHIBITS - EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF THE ORDER NO.KWA/JB/E9-3947/2013 DATED 1.1.2014 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE ORDER NO.KWA/HO/E9/17158/2018 DATED 20.1.2019 PASSED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT ON 21.5.2019 IN WPC NO.13933/2019. EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF ORDER NO.KWA/HO/E9/13489/2019(1) DATED 21.6.2019 PASSED BY THE 3RD RESPONDENT. - EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE ORDER NO.KWA/JB/E9/2078/2007 DATED 18.11.2019 PASSED BY THE 3RD RESPONDENT. Exhibit P6 TRUE COPY OF THE ORDER NO. KWA/JB/E9/4293/2007 DATED 25/07/2022 PASSED BY THE DEPUTY CHIEF ENGINEER (GL)KERALA WATER AUTHORITY W.P.(C).Nos.13933/19 & con.cases 26 ## **APPENDIX OF WP(C) 16182/2020** PETITIONER EXHIBITS - EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF ORDER NO.18765/E9/2017/KWA DATED 27.11.2017 PASSED BY THE 3RD RESPONDENT - EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF PROVISIONAL SENIORITY LIST PUBLISHED VIDE ORDER NO.KWA/HO/E9/13489/2019(2) DATED 1.6.2019 - EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF ORDER NO.KWA/HO/E9/13489/2019(1)DATED 21.6.2019 PASSED BY THE 3RD RESPONDENT - EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE ORDER NO. KWA/JB/E9/2078/2007 DATED 28.6.2019 PASSED BY THE 4TH RESPONDENT - EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE ORDER NO.KWA/HO/E9/13489/2019 DATED 30.7.2020 PASSED BY THE 3RD RESPONDENT - EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT - EXHIBIT P7 POSTAL ACKNOWLEDGMENT EVIDENCING DISPATCH OF EXHIBIT P6 - EXHIBIT P8 TRUE PHOTOSTAT COPY OF INTERIM ORDER PASSED BY THIS HONBLE COURT ON 19-8-2019 IN WPC NO.22448/2019 - EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE INTERIM ORDER PASSED BY THIS HONBLE COURT ON 22-12-2020 IN WPC NO.1778/2020 27 ## W.P.(C).Nos.13933/19 & con.cases EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE INTERIM ORDER PASSED BY THIS HONBLE COURT ON 21-5-2019 IN WPC NO.13933/2019. W.P.(C).Nos.13933/19 & con.cases 28 ## **APPENDIX OF WP(C) 13933/2019** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER NO.KWA/HO/E10/4232/02 DATED 28.10.2002 - EXHIBIT P2 TRUE COPY OF THE KWA/IB/E99000/1999/VOL.II DATED 23.3.2007 - EXHIBIT P3 TRUE COPY OF THE KWA/JB/E9-9000/99/VOL.II DATED 26/8/2011 OF THE SENIOR ADMINISTRATIVE OFFICER, KERALA WATER AUTHORITY - EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO.8130/AD.C3/2010/P& ARD DATED 24.2.2012 - EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 12.10.2017 IN W.P(C) NO.32518/2017 - EXHIBIT P6 TRUE COPY OF THE KWA/HO/E9/ 17158/2018 DATED 20.1.2019 ISSUED BY THE 2ND RESPONDENT - EXHIBIT P7 TRUE COPY OF THE KWA/JB/E9/2078/2007 DATED 16/11/2017 - EXHIBIT P8 TRUE COPY OF THE ORDER KWA/JB/E.9/2078/2007 DATED 28/6/2019 TRUE COPY PS TO JUDGE